Interactive Brokers, TradeStation oppose Trading Technologies’ motion to multiply patent appeals

Maria Nikolova

The appellees note there is sufficient overlap in subject matter and context between the appeals and that they have to be argued before the same panel of the Court both for efficiency and consistency.

A follow-up to FinanceFeeds’ earlier article about Trading Technologies seeking to de-consolidate two of the appeals it has launched regarding decisions made by the Patent Trial and Appeal Board (PTAB) – a move that may lead to an even higher number of appeals filed by TT against PTAB’s decisions…

As expected, the appellees in the case – IBG LLC, Interactive Brokers LLC, TradeStation Group, Inc. and TradeStation Securities, Inc., have objected to the motion. This is barely surprising given that the same brokers are appellees in six cases brought by Trading Technologies during the past four moths over issues that are broadly the same.

On November 13th, the appellees addressed the Federal Circuit U.S. Court of Appeals, opposing Trading Technologies International, Inc.’s motion to have this appeal de-designated as a companion case to Case No. 18-1063.

According to TT, the Court should de-consolidate the case that concerns two of its patents: U.S. Patent No. 7,904,374 (“the ’374 patent”) – a member of the Brumfield family, and TT’s U.S. Patent No. 7,212,999 (“the ’999 patent”) – a member of the Friesen family. The patents in question refer to a graphical user interface for traders. Patent ‘999, for example, describes a GUI for an electronic trading system that allows a remote trader to view trends for an item, which assists the trader to anticipate demand for an item.

In their latest submission with the Court, the appellees argue that TT is correct that this appeal and Case No. 18-1063 involve two different patents. However, there are significant benefits to the Court and to the parties of maintaining the companion case designation. First, TT asserted both patents against Appellees in the same district court case, and both patents were asserted against the same products. These appeals are from final decisions of the PTAB in Covered Business Method Reviews (“CBM”) filed in defense of that lawsuit, and involve the same parties and same lawyers. Both CBM cases were even argued before the same PTAB panel on the same day, and the Final Written Decisions on appeal both issued simultaneously.

Also, both appeals present only a single issue, namely whether the single patent at issue in each appeal is directed to unpatentable subject matter under 35 U.S.C. § 101. In addition, both patents relate to graphical user interfaces for financial trading—indeed, claims of both patents recite many common elements such as the display of market information concerning bids and asks along a price axis.

Putting the briefly, the appellees emphasize that there is sufficient overlap in subject matter and context between the two appeals that they ought to be argued before the same panel of the Court both for efficiency and consistency.

De-consolidation is not a popular measure for the Federal Circuit U.S. Court of Appeals.

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